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Without prejudging the York case, many ethicists believe that as a general rule, a couple's primary claim to use of its embryo has a sound basis in law and common sense. "When a physician starts owning embryos and making decisions for his patients," says Marrs, co-founder of Good Samaritan's Institute for Reproductive Research, "there'll be no stopping anyone who has anything to do with pregnancy from getting involved." The Roman Catholic Church, in company with many conservative Protestant groups, opposes all in vitro fertilization. Nonetheless, the Yorks have received moral support in their suit from the Right to Life League of Southern California. "Howard Jones has no rights in this matter," says president Susan Carpenter McMillan. "He's playing God -- in effect saying 'I created this life, so I can decide what to do with it.' But he only provided the tools, not the materials."
Nonetheless, most ethicists agree that the couple's proprietary right to their embryo is not absolute. Some specialists contend that institutes and laboratories should have the right to prevent couples from authorizing inappropriate experimentation on embryos. These experts believe that couples considering in vitro fertilization should seek professional counseling as a matter of course. They should decide in advance what is to be done with the zygote if they do not use it because of death or divorce, and their decision should always be codified in a legally binding contract. "The power to decide should be agreed upon at inception," says John Robertson, a University of Texas law professor who serves on the ethics committee of the American Fertility Society.
Such contracts might preclude the kind of puzzle raised by a Blount County, Tenn., divorce case that is still being adjudicated. Mary Sue Davis wants her and her husband's frozen embryos kept in storage in case she wishes to use or donate them. Husband Junior Davis wishes them destroyed, arguing that their use after the divorce would force him into unwanted fatherhood.
Many ethicists have problems with the Louisiana law, which was designed with the laudable goal of protecting the embryo from experimental misuse or casual destruction. For example, does the statute's definition of the zygote as a juridical person mean that it has inheritance rights? Many secular experts argue that an embryo need not have the protection accorded human life until the fetus begins to take on recognizable features -- roughly, at the sixth week of pregnancy. But because of its human potential, these ethicists say, the frozen embryo should not be treated as mere tissue. Thus they see the donation of an embryo by one couple to another as analogous to adoption, but they argue that the marketing of zygotes is as repugnant as the sale of children.
Beyond that, notes Dr. Kathleen Nolan of New York's Hastings Center, "there is no consensus on how to talk about frozen embryos." In fact, she observes, the ethical debate is even less focused than the unending rhetorical battle over abortion. Which means, ultimately, that all concerned have a lot of hard thinking to do before legislatures and courts can begin to determine where rights and wrongs begin.